People v. Gilker

232 N.E.3d 588

2023 IL App (4th) 220914

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Bruce W. GILKER, Defendant-Appellant.

NO. 4-22-0914

Appellate Court of Illinois, Fourth District.

Filed December 1, 2023

Appeal from the Circuit Court of Adams County, No. 21CF548, Honorable Michael L. Atterberry, Judge Presiding.

James E. Chadd, Santiago A. Durango, and Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.

Gary L. Farha, State’s Attorney, of Quincy (Patrick Delfino, David J. Robinson, and James Ryan Williams, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In May 2022, a jury convicted defendant, Bruce W. Gilker, of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)) and sexual exploitation of a child (id. § 11-9.1(a)(1)). The trial court later sentenced him to consecutive prison terms of 15 years and 4 years.

¶ 2 Defendant appeals, arguing that (1) he was denied a fair trial because of the improper admission of evidence regarding other criminal conduct or bad acts, (2) he was denied a fair trial as a result of testimony vouching for the credibility of the alleged victim, and (3) he was prejudiced by the State’s improper comments during closing argument. We disagree.

¶ 3 I. BACKGROUND

¶ 4 A. The Charges

¶ 5 In September 2021, the State charged defendant with three counts of predatory criminal sexual assault of a child (id. § 11-1.40(a)(1)) and one count of sexual exploitation of a child (id. § 11-9.1(a)(1)). The State alleged that defendant committed the offenses against I.R.G. (born in March 2014), a minor under 13 years of age, by touching her sex organ with his penis (count I) and hand (count II), touching her hips and buttocks with his penis (count III), and masturbating in her presence, knowing she would view the act (count IV). (We note that defendant is I.R.G.’s father.)

¶ 6 B. Pretrial Proceedings

¶ 7 Prior to trial, the trial court granted the State’s motion in limine seeking to introduce, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2020)), a videotape of an interview of I.R.G., conducted by Susan Tode at the Children’s Advocacy Center (CAC). The court also granted the State’s motion to introduce the testimony of (1) Susan Tode, (2) I.R.G.’s therapist, Jeanette Edwards, and (3) I.R.G.’s mother, J.J., about statements I.R.G. made to them. The court further allowed the State to (1) present evidence that defendant showed I.R.G. pornography and (2) impeach defendant with his prior conviction of intimidation if he chose to testify.

¶ 8 C. Trial Evidence for the State

¶ 9 At trial, the parties stipulated that I.R.G. lived with her mother, J.J., and her father, defendant, from her birth until October 2019. On October 10, 2019, defendant obtained an emergency order of protection against J.J. As a result, I.R.G. lived with defendant until November 5, 2019, when the emergency order of protection was dismissed. At that time, I.R.G. returned to live with J.J., who has had custody of I.R.G. since that time.

¶ 10 1. I.R.G.

¶ 11 I.R.G. testified that she was eight years old and currently lived with J.J. When she was three or four years old, she would sometimes shower with defendant when her mother was not home, and defendant would "mess with his private parts" and "get very close to [her]." I.R.G. also testified that she and defendant would be together in bed or on a couch and he would touch her "private" with his hand or his "private," making her feel "scared or nervous or sad." When her mother was not home, defendant also showed her movies with naked people kissing each other. I.R.G. testified there were "kids or grownups" in the movies. For a few weeks when she was five years old, I.R.G. lived with defendant at her Aunt Jessie’s house, but I.R.G. could not remember if any of the incidents happened while she lived there. I.R.G. identified People’s group exhibit No. 1 as drawings she made depicting some of the incidents, and she testified she showed the drawings to Edwards during counseling sessions.

¶ 12 On cross-examination, I.R.G. testified that defendant sometimes touched her with his hands and "private" while they lived at her Aunt Jessie’s house. She testified that defendant began touching her when she was two years old and the touching sometimes caused her to feel burning in the front and back of her "privates" and to bleed in her underwear, which defendant hid or threw away. I.R.G. also testified that one of her drawings contained in the group exhibit depicted her sister, her sister’s boyfriend, defendant, and her Aunt Jessie in the garage smoking a pipe "when [her] mom left for the jail thing."

¶ 13 2. J.J.

¶ 14 J.J. testified that she lived with I.R.G. and defendant until October 2019. Because J.J. worked full-time, defendant cared for I.R.G. during the day from the time I.R.G. was born in 2014 until she was 2½ years old. Although J.J. knew defendant and I.R.G. sometimes took showers together, she testified that she never saw defendant do anything inappropriate. On October 10, 2019, a court issued an order prohibiting J.J. from having any contact with I.R.G. or defendant. But when J.J. regained custody of I.R.G. on November 5, 2019, I.R.G. was "clingy" and often woke up with nightmares. J.J. arranged for I.R.G. to have counseling with Edwards, beginning in April 2020.

¶ 15 In November 2020, I.R.G. told J.J. for the first time that defendant "would start playing, messing with himself" and rubbed against her back when they took showers together. Following a counseling session between I.R.G. and Edwards on April 22, 2021, Edwards told J.J. she was going to make a report. A few days later, J.J. was contacted by the CAC to arrange for an interview with I.R.G. J.J. testified that she did not tell I.R.G. what to say during the interview, during which she stayed in a separate room at the CAC. J.J. testified that she did not tell I.R.G. to make the drawings contained in People’s group exhibit No. 1.

¶ 16 On cross-examination, J.J. testified that when she was forced to leave her home on October 10, 2019, she saw her older daughter, her daughter’s boyfriend, defendant, and defendant’s sister, Jessie, in the garage. I.R.G. later showed J.J. a drawing of those four people in the garage with what looked like a pipe and a baggy. I.R.G. told J.J. that she had seen defendant with those items several times.

¶ 17 J.J. testified that defendant was allowed supervised visitation with I.R.G. off and on, starting in June 2020, and I.R.G. began having nightmares again following those visits. J.J. was shown defendant’s exhibit No, 1 and identified it as her petition for an order of protection against defendant, filed on May 5, 2021, which she had signed under penalty of perjury. Defense counsel went through J.J.’s allegations against defendant contained in her petition. Despite those allegations, J.J. admitted she never saw blood in I.R.G.’s underwear or pornography in the house and she never saw any indication that defendant sexually abused I.R.G. The trial court admitted the exhibit on defense counsel’s motion.

¶ 18 On redirect, J.J. testified that she made the allegations supporting the order of protection based on what people at the CAC told her to say. She acknowledged that the allegations were not based on her own personal knowledge.

¶ 19 3. Jeanette Edwards

¶ 20 Jeanette Edwards testified that she was a therapist and began counseling I.R.G. in April 2020. During a counseling session on April 22, 2021, I.R.G. showed Edwards the drawings she drew that were contained in People’s group exhibit No. 1. The exhibit was admitted into evidence over defense counsel’s objection.

¶ 21 Edwards testified that I.R.G. explained to her that one of the drawings showed her and defendant taking a shower together; one showed defendant rubbing against her, causing her hip to become wet; one showed them in bed, where he would touch her bottom when her mother was at work; and one showed defendant, her Aunt Jessie, JJ.’s older daughter (Kim), and Kim’s boyfriend taking what looked like crushed ice out of a bag, putting it in a "thing," and passing it around in the garage.

¶ 22 I.R.G. told Edwards that when her body got wet from contact with defendant, he would dry her off and tell her not to tell anyone. Edwards testified that J.J. was in a separate room when I.R.G. showed and explained the drawings.

¶ 23 After that counseling session, Edwards made a hotline call to report the discussion because she was a mandated reporter.

¶ 24 On cross-examination, defense counsel asked about the fourth drawing in People’s group exhibit No. 1, referring to it as "the one about the drugs apparently." Edwards testified that J.J. told her I.R.G. had "a hard time with sleep," but she did not recall J.J. mentioning nightmares. After reviewing her notes from April 20, 2020, contained in defendant’s exhibit No. 2, Edwards confirmed that she did not document any complaint by J.J. about I.R.G. having nightmares. The trial court admitted defendant’s exhibit No. 2 on defense counsel’s motion over the State’s objection.

¶ 25 Edwards also agreed that I.R.G. never complained about defendant until April 2021. When I.R.G. showed Edwards the drawings, I.R.G. did not cry or seem upset; she did, however, say that it was hard and uncomfortable to talk about the drawings.

¶ 26 4. Susan Tode

¶ 27 Susan Tode, a CAC coordinator and forensic interviewer, testified she interviewed I.R.G. on April 28, 2021. A videotape of the interview was played for the jury. Tode also testified that I.R.G. circled and named parts of the body involved in the alleged touching on male and female body charts. Tode identified the charts contained in People’s exhibit No. 7, and the exhibit was admitted into evidence.

¶ 28 5. Kelsey Miller

¶ 29 Sheriff’s Investigator Kelsey...